5.  The applicant is a registered association which has its seat in Vienna. Its aim is to research and study past and present transfers of ownership of agricultural and forest land in order to reach conclusions as to the impact of such transfers on society. The applicant association also gives opinions on draft laws falling within its field of interest.
6.  In essence, agricultural and forest land transactions require approval by local and regional authorities. The latter are called Regional Real Property Transactions Commissions (Landes-Grundverkehrs-kommis­sionen). The aim of this requirement, laid down in the Real Property Transactions Acts of the Länder, is to preserve land for agricultural use and forestry and, in some of the regions including Tyrol, to avoid the proliferation of second homes. The applicant association states that it is sent all decisions issued by the Regional Real Property Transactions Commissions with the exception of the one for Tyrol. In the decisions it receives, the names of parties and other sensitive data are usually anonymised.
7.  On 26 April 2005 the association asked the Tyrol Real Property Transactions Commission (“the Commission”) to provide, by mail, all decisions issued since 1 January 2005 in anonymised form, the costs thereof to be reimbursed. By letter of 12 July 2005 the Commission replied that it could not comply with the request owing to lack of time and personnel.
8.  On 18 July 2005 the applicant association submitted a further request, this time requesting the provision, by mail, of all decisions issued since 1 January 2000 in anonymised form. In the event of refusal of the application, it demanded a formal decision in accordance with the Tyrol Access to Information Act (Tiroler Auskunftspflichtgesetz - “the Information Act”). The applicant association argued that since the Commission’s decisions concerned “civil rights” within the meaning of Article 6 of the Convention, the decisions should be either publicly announced or made public by other appropriate means.
9.  In its decision of 10 October 2005 the Commission rejected the request, holding that the transmission of anonymised copies of its decisions did not constitute information within the meaning of section 1(2) of the Information Act, which defines information as “existing knowledge on matters known to the authority at the time it provides the information”. Moreover, even if the request were to fall within the scope of that provision, the Information Act stated that pursuant to section 3(1) subparagraph (c) there was no duty to provide the information if doing so would require so many resources that the functioning of the authority would be affected. The decision stated that complaints could be lodged with the Constitutional Court (Verfassungsgerichtshof) and the Administrative Court (Verwaltungs­gerichtshof).
10.  The applicant association complained to both the Constitutional Court and the Administrative Court. It relied on Article 10 of the Convention.
11.  In its submissions in reply to the applicant association’s complaint to the Constitutional Court and the Administrative Court, the Commission maintained that its decisions did not constitute information within the meaning of the Information Act. It argued that a decision contained the facts of the case and the legal conclusions the authority had drawn from them. Legal arguments could be discussed and decisions could be challenged and set aside if the legal conclusions were found to be wrong. Therefore, giving someone access to a decision was comparable to giving someone legal advice, as opposed to providing information as defined in the Information Act.
12.  On 21 September 2006 the Administrative Court declared that it did not have jurisdiction to deal with the case and rejected the applicant association’s complaint. The Administrative Court held that it was only competent to deal with complaints against decisions regarding transfers of building plots and not with complaints brought against the Commission’s decisions on transfers of agricultural or forest land. As the applicant association had not claimed to have been party to the transfer of a building plot, it could not base its complaint on that status. Neither did the Information Act contain any rule stating that complaints about decisions by the Commission pursuant to the Information Act were to be lodged with the Administrative Court. Therefore the matter was excluded from the Administrative Court’s jurisdiction. Consequently, the statement in the Commission’s decision that a complaint could be lodged with the Administrative Court was not correct.
13.  On 27 February 2007 the Constitutional Court declined to deal with the case for lack of prospects of success from the perspective of constitutional law, and also because the matter was not excluded from the Administrative Court’s jurisdiction. The decision was served on the association’s representative on 4 April 2007.
14.  After the Government had been notified of the present application, the applicant association, relying on the Government’s argument in respect of exhaustion of domestic remedies (see paragraph 26 below), lodged an application under Article 138 of the Federal Constitution seeking a ruling from the Constitutional Court on the negative conflict of jurisdiction between it and the Administrative Court.
15.  On 2 December 2011 the Constitutional Court issued a decision stating that it was competent to rule on the applicant association’s complaint against the Commission’s decision of 10 October 2005. Consequently, it set aside its own decision of 27 February 2007 and awarded the applicant association reimbursement of the costs of the proceedings.
16.  In a further decision of 2 December 2011, the Constitutional Court ruled on the merits of the applicant association’s complaint. Referring to the Court’s case-law and its own case-law, it held in particular that whilst the right to receive information enshrined in Article 10 of the Convention prohibited States from restricting the receipt of information that others wished to or might be willing to impart, it did not – by contrast – impose a positive obligation on States to collect and disseminate information of their own motion. The Constitutional Court added that, in accordance with its established case-law, Article 10 did not require the State to grant access to information or to make information available of its own motion. Consequently, the Commission’s refusal to transmit anonymised copies of all decisions issued during a specific period of time to the applicant association did not constitute an interference with the latter’s right under Article 10 of the Convention.
17.  As to the applicant association’s argument that the Commission’s decision was arbitrary as it had failed to provide reasons, the Constitutional Court referred to the explanatory report on the Information Act and endorsed the Commission’s view that the applicant association’s request was not merely a question of obtaining information about one or more specific issues, but would require the Commission to compile – of its own motion – all decisions issued over a period of some years, to anonymise them, and to send paper copies thereof to the applicant association. The Commission had therefore rightly taken the view that the applicant association’s request did not fall within the scope of section 1 of the Information Act. Moreover, the Commission had also dealt with the merits of the request in that it had concluded that the provision of information could be refused pursuant to section 3(1) subparagraph (c) of the Information Act as it would require investigations, calculations or preparations considerably impinging on the fulfilment of its other tasks.
18.  Lastly, the Constitutional Court observed that the applicant association could be implicitly relying also on Article 6 of the Convention. It noted that neither the Court’s case-law in respect of public access to court decisions nor its own case-law guaranteed the right to obtain anonymised copies of all decisions issued by the Commission over a lengthy period. According to the Constitutional Court’s case-law, access had to be given to the judgments delivered by the highest courts which dealt with cases raising important legal issues. However, this did not apply to all the Commission’s decisions.